ADJUDICATION OFFICER DECISION and RECOMMENDATION
Adjudication Reference:
Parties:
| Complainant | Respondent |
Anonymised Parties | An Architectural Technologist | An Engineering and Architectural Services/Consulting Company |
Representatives | Self-Represented |
Complaint(s):
Act | Complaint/Dispute Reference No. | Date of Receipt |
CA-00024465-001 | ||
CA-00024465-002 |
Date of Adjudication Hearing:
Workplace Relations Commission Adjudication Officer:
Procedure:
In accordance with Section 8 of the Unfair Dismissals Acts, 1977 – 2015 and Section 13 of the Industrial Relations Act, 1969,following the referral of the complaint(s)/dispute(s) to me by the Director General, I inquired into the complaint(s)/dispute(s) and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint(s)/dispute(s).
Very extensive Oral and Written evidence was presented. Full cross examination of all witnesses was allowed.
Background:
The issues in contention in this case involve the alleged Constructive Dismissal of an Architectural Technologist by an Engineering and Architectural Services/Consulting Company |
1: Summary of Complainant’s Case: (Adjudicator precis of very extensive oral and written Complainant evidence.)
1:1 CA-00024465-001 Unfair Dismissals Act,1977 Complaint. The claim is one of Constructive Dismissal on the basis that the working conditions imposed on the Complainant became progressively and absolutely egregiously intolerant, especially, in the last two years of employment. His employment had lasted from November 2011 to June 2018. All aspects of a family & work life balance became impossible. In addition, his professional integrity as a highly respected Architectural Technologist was in jeopardy due to questionable work practices / procedures in the Respondent Company. Clashes with his Contracts Director, Mr. Xa, began in mid-2017 and intensified. A particularly extreme example being a very heated verbal exchange at a meeting on the resumption of work following the Christmas break, in January 2018. Shortly afterwards Mr. Xa and the then CEO, Ms. Xb left the Respondents’ employment. A New Senior team was appointed. In effect the new Senior Team was almost completely junior to the Complainant in experience and business knowledge. The Complainant felt that members of the new Senior team began to unnecessarily oversee “baby sit” his work and subject him to intolerable supervision. His work assignments were downgraded to junior level work and often scheduled to pose him family difficulties. Work direction was chaotic. All aspects of professional project management disappeared. In early 2018 he was subjected to queries over his time keeping, leaving the office early and the correct vouching of his expenses by staff clearly junior to him. In separate but related issues his End of Year bonus for 2016 was significantly reduced on dubious “performance issues” and was not paid at all for 2017. This was very serious financial issue for the Complainant and clearly in breach of his Contract of Employment. The Complainant noted in his extensive evidence efforts he made to clarify all matters of concern with the Respondent CEO, Ms. Xb. However, this became frustrating as she unexpectedly left he business in early 2018. The good relationship, he had had with her, left with her. The Executive Chairman Mr. Xc then resumed the direct role of operating CEO. He was primarily engaged in steadying the ship following Ms. Xb departure and could not really devote time to addressing the Complainant’s concerns. Issues continued to arise over work Projects and the excessive demands being placed on the Complainant, often due to completely contradictory information and misunderstanding of client requirements. Questions regarding the scheduling of a Business Trip to Birmingham and the querying of his general expenses were particularly offensive to the Complainant. He described these as “the straw that broke the camel’s back”. Finally, on the 30th June 2018 the Complainant attended the Office on a Saturday to write his resignation and left the business. A detailed e mail of resignation was sent to the CEO. The Resignation decision was not an easy one but was forced on the Complainant by the intolerable conditions of the employment and the breach of contract regarding bonus payments. The case clearly qualifies as a Constructive Dismissal. 1:2 CA-00024465-002 Industrial Relations Act ,1969 Complaint - Bullying and Harassment Procedures The evidence presented to substantiate this complaint largely covered the materials referred to in the Unfair Dismissals Act complaint. The Complainant alleged that he was largely isolated, his employment concerns were ignored, and his professional standards were compromised. He was systematically verbally abused and belittled. He was, he alleged, referred to as an “Office Diva”. All efforts to alleviate his concerns such as contacts with the CEO, proved fruitless and he had no choice but to resign.
All Oral evidence given was open to full cross examination.
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2: Summary of Respondent’s Case: (Adjudicator precis of very extensive oral and written Respondent evidence.)
2:1: In summary the Respondent made the following points in rebuttal of both Complaints. In a Constructive Dismissal case the Legal requirements are that the Complainant satisfy two tests. These being firstly Unreasonable Employer behaviour so egregious as to make a resignation the only course of action open to an employee and secondly that there is a Fundamental Breach of the Employment contract by the Employer. In neither of these Grounds has the Complainant made a sustainable case. In addition, the Complainant is also required, where at all feasible, to utilise any Internal Employment Grievance procedures that may be set out in an employment contract/ Handbook. The complaint did not utilise any internal procedures set out in the Terms and Conditions of Employment. In supporting evidence, the Respondent pointed out that the Complainant had made it very clear in a lengthy e mail (4 closely typed pages) of the 3rd January 2018 to the former CEO Ms. Xb, forwarded to the current CEO, Mr Xc in February, that resignation was an option very much on his mind. He had made several demands on the Respondent including more flexible working hours and a significantly enhanced salary. He also made suggestions as to his role in the Organisation post the unexpected exit of Ms. Xb and Mr. Xa -the Contracts Director. The incoming CEO, Mr. Xc established a new Senior team which did not includes the Complainant. This was clearly a source of considerable disquiet to the Complainant. A perceived grievance and source of great irritation to the Complainant was his professional situation in relation to a professionally qualified member of this Senior Team. The Complainant, while very highly regarded as a Technologist, is not professionally qualified as an Architect and this is a career limiting factor. It was professionally necessary for the Architect on the Senior Team to oversee his work even if the Complainant may have been much more senior in terms of practical experience and industry knowledge. The issue of Complaint regarding the Expenses was straight forward -it was managerially unacceptable to leave expenses unclaimed for prolonged periods (6 months) and nothing unusual or personally vindictive, in the Accounts Deportment examining them when presented for payment so far in arrears. The E mail of Resignation (30th June 2018) was lengthy (4 pages) and made numerous allegations. These matters could have been discussed with the CEO, Mr Xc and did not warrant so drastic a step as a resignation. In a follow up, post resignation meeting, two weeks later in the City West Hotel with the CEO, the Complainant was quite pleasant and explained that he had resigned to allow himself a better work life balance especially with his young son. In questioning, by the Adjudicator, the CEO indicated that he would have been quite happy to have rescinded the resignation, but this never came up during the meeting. The CEO queried why he had not taken the opportunity to speak directly to him prior to such a drastic step as a resignation. The Complainant reiterated the Work /Life arguments as his principal reason. In Respondent summary it was contented that the Complainant has not satisfied the Legal tests of Contract and Behaviour for a constructive dismissal. He had not used internal Grievance Procedures and was clearly of a frame of mind for some time, effectively since January, to resign. Accordingly, the claim for Constructive Dismissal must fail.
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3: Findings and Conclusions:
An extraordinary amount of written and oral evidence was presented in this case. The Unfair Dismissals complaint CA-00024465-001 and the Industrial Relations complaint CA-00024465-002 ran on the same materials and I will consider them together. As a first instance I will consider the relevant law. 3:1 The Relevant Law The Unfair Dismissal Act,1977, the Constructive Dismissals “Tests”, the issue of the use of Procedures prior to a Resignation and the body of Legal precedents. In relation to Constructive Dismissal the Adjudicator in A Maintenance Supervisor v A Charity ADJ 00002881 set out a comprehensive review which is worth quoting. “For a claim of constructive dismissal to be properly brought under Section 8 of the Unfair Dismissals Acts 1977-2015, the Complainant must satisfy the definition in Section 1(b) which provides: “the termination by the employee of his contract of employment with his employer, whether prior notice of the termination was or was not given to the employer, in circumstances in which, because of the conduct of the employer, the employee was or would have been entitled, or it was or would have been reasonable for the employee, to terminate the contract of employment without giving prior notice of the termination to the employer,…” As endorsed by the Labour Court in Paris Bakery & Pastry Limited -v- Mrzljak DWT1468, the classic formulation of the legal test in respect of constructive dismissal was set out by the UK Court of Appeal in Western Excavating (ECC) Ltd -v- Sharp [1978] 1 All E.R. 713. It comprises of two limbs, referred to as the ‘contract’ and the ‘reasonableness’ tests. It summarised the ‘contract test’ as follows: “If the employer is guilty of conduct which is a significant breach going to the root of the contract of employment, or which shows that the employer no longer intends to be bound by one or more of the essential terms of the contract, then the employee is entitled to treat himself as discharged from any other performance.” The reasonableness test assesses the conduct of the employer and whether it “…conducts himself or his affairs so unreasonably that the employee cannot fairly be expected to put up with it any longer, if so the employee is justified in leaving.” According to the Irish Supreme Court in Berber -v- Dunnes Stores [2009] E.L.R. 61: “The conduct of the employer complained of must be unreasonable and without proper cause and its effect on the employee must be judged objectively, reasonably and sensibly in order to determine if it is such that the employee cannot be expected to put up with it.” Unlike the position where dismissal is not in issue, this definition firmly places the onus/burden of proof on the employee to show that the resignation was justified in all the circumstances. Furthermore, in the case of use/non-use of Employment Procedures the oft quoted text is from the case of Harrold v St Michael’s House, [2008] E.L.R. where the determination quoted from Redmond, Dismissal Law in Ireland (2002): “There is something of a mirror image between ordinary dismissal and constructive dismissal. Just as an employer for reasons of fairness and natural justice must go through disciplinary procedures before dismissing, so too an employee should invoke the employees’ grievance procedures in an effort to revoke his grievance. The duty is an imperative in employees’ resignations.”
However, a certain degree of Legal caution is required here. In the case of Allen v Independent Newspapers, IR [2002] E.L.R. 84 the claimant, resigned her position. She alleged that she had been constructively dismissed in that the conduct of her employer and the treatment of her and attitude towards her left no choice but to terminate her employment. The Employment Appeals Tribunal, however, was satisfied that at various stages throughout her employment and more particularly in September 2000, the claimant brought her complaints to senior management level within the Respondent newspaper. Overall, the Tribunal considered that it was reasonable for the claimant to take into consideration the manner in which her various complaints were dealt with during 1999 and 2000 in arriving at her conclusion that she had essentially lost faith in what was being offered by way of investigation by the Respondent in September 2000. She was entitled to do so because the EAT accepted that she had cause for complaint after June 2000. The tribunal therefore accepted the claimant’s assertion that she could have no confidence in the Respondent to address her grievances either properly or effectively and that such was a reasonable conclusion in all the circumstances. Furthermore, the claimant did not act unreasonably in taking into consideration the likely effect on her health and wellbeing were she to remain in the work environment. She had communicated her concerns about her health to her employer. The tribunal, however, considered that this was a constructive dismissal and stated that “the Respondent company acted unreasonably in its dealings with the claimant and she became frustrated, leaving her with no option but to resign”. In summary therefore, a failure to use internal Procedures prior to a Resignation has to be considered carefully by an Adjudicator in any consideration of a Constructive Dismissal. However, all cases stand on their own evidence and I will consider, what I felt, were the most pertinent points of this. 3:2 The evidence presented /Oral and Verbal. A resignation, the giving up of a €63,500 per annum position, is not a step to be taken lightly. Under the Two Tests rule, as set out above, serious and significant factors must be in play. As an aid let us look at the case under these headings 3:2:1 Fundamental Breach of Employment Contract In common terms this normally implies that a basic term such as Salary or Remuneration is not paid, or the Complainants job content is completely diminished. In this case the Complainant got a reduced bonus for 2016 (on performance grounds) and no bonus at all for 2017. His basic salary was maintained. To warrant a Constructive Dismissal response on Breach of Contract these are not adequate grounds. The 2017 bonus was withheld from all employees due to economic difficulties and the performance reduction in 2016 was some 35% -again not sufficient to warrant, in accepted understandings of employment law, a resignation. The bonus was a variable element of the Salary and as such its non-payment, while most upsetting to the Complainant, could not be deemed to be a fundamental or significant breach of contract as per the definition in Western Excavating (ECC) Ltd -v- Sharp [1978] 1 All E.R. 713 quoted above. The changes in the job role alleged by the Complainant were debatable and certainly did not appear to me to be such as to warrant a resignation as the only “reasonable step”. On overall summary I did not find that the matters satisfied the Breach of Contract test for his claim. 3:2:2 Unreasonable Behaviour by Parties. The basic tenet of the Complainant’s case was that he was denied any possible work Life balance and the demands placed on him by the Respondent employer were such as to make his employment impossible to sustain in any reasonable or personally safe fashion. From the evidence given there was no doubt but that the Complainant was a most industrious employee and achieved considerable output targets. It was also clear that the Management of the Respondent had suffered a number of severe shocks culminating in the unexpected exits of the Contacts Manager and the then CEO in early 2018. The effects of the economic recession on the business during the years 2016 to 2018 could also not be ignored. The change in Senior Personnel undoubtedly lead to a degree of confusion and miscommunications in regard to clients and their requirements. Good Project Management became challenging. Most of these issues lay behind the Complainant 4-page e-mail of the 3rd January to the former CEO (and later copied to the new CEO in early February). He was aware of the Complainant’s position and his clearly set out demands/requirements. Many Organisations go through periods of internal turmoil and the oral evidence of the incoming CEO was that his first priority was to “steady the ship” in early 2018. There was no doubt from the evidence that the general confusion that arose in this period of turmoil was unpleasant. The Complainant was contacted on Holidays regarding urgent issues concerning a Client brief. On his return to Ireland the issues which appeared to have arisen from a misunderstanding of the job requirements were resolved. I could not see this, while upsetting to the Complainant, as a fundamental example of Unreasonable Employer Behaviours. The issues identified by the Complainant as “Breaking the camel’s back” -the Birmingham Trip and the Expenses issues certainly were a further serious irritant to the Complainant but not such as to warrant, in any reasonable consideration, a resignation. It appeared that the perceived more junior level of the Finance and Managerial personnel making the queries was the main factor for the Complainant. In overall review of all the evidence both written and oral, I could not see all the issues being advanced by the Complainant as of such a serious and fundamental nature, even if taken cumulatively, as to warrant a resignation. I did not see how the Unreasonable Behaviours test was satisfied in the Complainant’s favour. 3:2:3 Internal procedures /Use/Non-Use of / Other issues / Appointment of the new Senior team / The resignation e mail of the 30th June 2018. The Respondent has clearly set out procedures in the Employment Handbook. The Complainant did not utilise these to pursue his grievances. However, to be fair to him, he was in detailed communication with the them CEO in early 2018 and later reiterated his points to the new CEO, Mr Xc in February. The E Mail of the 3rd January, later copied to the new CEO in February, is worth considering. It is a detailed listing of suggestions to which the departing CEO Ms Xb promised to respond to. Unfortunately, she resigned shortly afterwards but , it was evident, the new CEO was aware of it and its contents. This lengthy E mail (4 /5 pages) makes it clear that the Complainant is considering resignation and a range of future options for himself. In the wake of the sudden departure of the CEO and the Contracts Manger the new CEO was fully engaged in corporate firefighting to ensure the business survived. In oral evidence he maintained that he had made it clear that most of the Complainant suggestions, salary increase etc, were simply not possible in the crisis situation them facing the Company. It was clear that the Complainant, who gave extensive oral evidence, felt he was not being listened to and his grievances were compounded by the appointment of the new Senior Team of which he was not a part, despite his service and extensive experience. The placing of a professional Architect in a sign off role for the Complainant was not an unreasonable step by the Respondent and was not “baby sitting” as alleged. It was, however, obvious from the evidence that it was a major irritant to the Complainant The expenses issue was standard accountancy practice and allowing expenses to build up as a form of deferred wages or savings was not acceptable. The actions of the Accountancy personnel were perfectly reasonable and not an issue that should lead to a resignation. The resignation E Mail of the 30th June summaries the issues for the Complainant. He refers to the “Senior Management Clique”, their lack of experience and the allegedly poor Project Management skills in the Respondent Organisation. In a final comment on the Management Clique paragraph he states “I work alone best, I don’t need babysitting and having this arrangement simply does not suit the best productivity for the Respondent and personal fulfilment for me” 3:3 Adjudicator Conclusions – Constructive Dismissal complaint - CA-00024465-001 On careful consideration of the oral and written evidence, in particular the lengthy resignation letter-e mail, the extensive e mail of the 3rd January 2018 and also the reports of the City West hotel meeting with the CEO some two weeks after I had to come to the conclusion that the Resignation of the Complainant was not a spur of the moment decision. It was a decision that was considered and in the offing since January 2018. Having considered the Two legal Tests of Unreasonable Behaviours and Breach of Contract together with the degrees of internal communication I did not consider that the Complainant had satisfied the high bar for a constructive dismissal case. Accordingly, I deem the complaint not to be Well Founded and I set aside the Constructive Dismissal claim. 3:4 Industrial Relations Act, 1969 Complaint - CA-00024465-002 As both complaints ran on the same evidence I did not find the Industrial Relations complaint well founded. In specifics I did not see any clear or concrete evidence to support a claim of Bullying or Harassment. The complaint is set aside.
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4: Decision & Recommendation:
Section 41 of the Workplace Relations Act 2015 and Section 13 of the Industrial Relations Act, 1969 requires that I make an Adjudication decision and an IR Recommendation in relation to the complaint(s)/dispute(s) in accordance with the relevant redress provisions of the cited Acts.
Act | Complaint/Dispute Reference No. | Summary Decision /Recommendation. Please refer to Section Three above for detailed reasoning. |
CA-00024465-001 | Constructive Dismissal complaint not substantiated. | |
CA-00024465-002 |
Dated: 17th September 2019
Workplace Relations Commission Adjudication Officer:
Key Words:
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